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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to the
award of Arbitrator Merton C. Bernstein filed by the Agency
under section 7122(a) of the Federal Service Labor-Management
Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations. The Union filed an
opposition to the Agency's exceptions.

The grievance in this case alleged that the Agency
violated the parties' collective bargaining agreement by
failing to maintain a safe and healthful work environment. The
Arbitrator sustained the grievance and directed the Agency to:
(1) pay hazard duty pay if regulations permit such payment or,
if not, petition for an amendment to the applicable
regulations; (2) restore annual or sick leave to its employees;
(3) reimburse unit employees for out-of-pocket medical care
costs; and (4) pay for unit employees' medical examinations.

The Agency excepts to the award on the basis that it: (1)
is contrary to law to the extent that it awards 25 percent
hazard pay to the grievants; (2) cannot be implemented because
it fails to resolve the issue of entitlement to hazard pay; and
(3) is contrary to law in ordering restoration of leave,
reimbursement for medical expenses, and payment for physical
examinations.

For the reasons which follow, we conclude that the
portions of the award directing the payment of hazard pay,
reimbursement for medical costs and expenses, and payment for
medical examinations are deficient and must be set aside.

The portions of the award directing the Agency to petition
for an amendment of hazard pay regulations and to restore leave
are not deficient. Accordingly, exceptions relating to those
portions of the award will be denied.

With regard to the portions of the award pertaining to the
restoration of leave, payment of medical costs and the
provision of medical exams, the Authority requested an advisory
opinion from the U.S. Department of Labor (DOL), which is
charged with administering the Federal Employees Compensation
Act (FECA), 5 U.S.C. § 8101 etseq. The DOL Opinion, as well
as the parties' responses thereto, are set forth in our
discussion of the pertinent Agency exception.

II. Background and Arbitrator's Award

The group grievance arose after the Agency moved its
employees into leased premises, which were also occupied by a
company manufacturing urethane. The move occurred in
mid-November 1986. The Arbitrator found that shortly after the
move, management and employees became aware that the work site
had ventilation problems which management "tried to ameliorate
by locating smokers in one area." Id. at 3.(1)

The Arbitrator found that the ventilation problems
persisted, and by February 1987, the fumes produced by the
operations of the manufacturing company caused Agency employees
to have various physical symptoms including headaches,
dizziness, and queasiness, which caused some employees to take
sick leave. The Agency requested that the landlord either move
the manufacturing operations or make alterations to the building to isolate the fumes in the
manufacturing portion of the building. No actions were taken
by the landlord. From late February to early April, the
problem did not recur. By April 27, 1987, however, the fumes
again entered the Agency's work space. An industrial hygiene
survey subsequently conducted by a General Services
Administration contractor revealed that methyl ethyl ketone
(MEK), a solvent, was being used on the manufacturer's premises
to clean the floor, and that MEK fumes had entered the Agency's
work space through a substandard fire wall and other openings.
The industrial hygienist found that the fumes and vapors were
causing "a potential health and fire safety hazard to the
individuals subjected to the exposure within the [Agency's]
office[,]" but that the exposure was short term and, "once
removed from the premises ill affects should subside." Id. at
4-5.

The Arbitrator then noted the Agency's conclusion that the
level of MEK "did not meet the accepted limits for either
explosive or hazardous exposure[,]" and that the level fell
well below the limits determined to be safe by the
Occuptational Safety and Health Administration (OSHA) for
workplace exposure. Id. at 5. However, because employees
continued to experience health problems, and in view of the
lack of cooperation by the landlord, the Agency vacated its
space on June 1, 1987.

Turning to the merits of the grievance, the Arbitrator
found that by early February 1987, the Agency was aware of a
substandard wall between the manufacturer's operations and the
Agency's space. The Arbitrator also found that the Agency's
reliance on the results of the industrial hygienist's survey to
establish that the levels of MEK were below accepted levels "do
not establish that on other earlier occasions 'accepted limits'
for MEK were not exceeded." Id.

The Arbitrator then reviewed provisions of the parties'
collective bargaining agreement and found that the Agency
violated sections 1A, 1C and 2 of Article 27.(2) More
specifically, the Arbitrator found that the Agency violated
section 1A of Article 27 by failing to provide and maintain a
safe and healthful working environment for its employees. The
Arbitrator rejected the Agency's contention that it had
fulfilled its obligations under the agreement by attempting to have the manufacturer removed from the premises. The
Arbitrator found, instead, that the agreement required the
Agency to provide a safe workplace and to maintain safe and
healthful working conditions, not merely to attempt to do so.

With regard to section 1C, which obligates the Agency "to
'institute prompt and appropriate action to correct any unsafe
working condition . . . reported[,]'" the Arbitrator found that
the Agency failed to remove its employees from premises that it
knew would expose them to health hazards which "were serious
enough for management to make plans to terminate the lease."
Id. at 8, 9. The Arbitrator found that the Agency should not
have waited to resolve its lease problems prior to honoring its
contractual safety obligations and that the Agency delayed
moving until "serious injury occurred." Id. at 10.

Finally, the Arbitrator concluded that the Agency breached
"its contractual duty to advise the Union and employees" of the
hazardous working conditions, as required by section 2 of
Article 27. Id.

Having found that the Agency violated the parties'
agreement, the Arbitrator then considered the following remedy
requested by the Union: (1) payment of hazard pay for the
period employees were co-located with the urethane
manufacturer; (2) restoration of leave taken by employees
during that period; (3) compensation for out-of-pocket medical
care costs incurred by the employees; and (4) payment for
physicals to determine whether employees incurred injuries.

With regard to the Union's first request, the Arbitrator
examined law and regulation governing hazard duty pay, set
forth at 5 U.S.C. § 5545(d), 5 C.F.R. Part 550, Subpart I, and
Appendix A to Subpart I. Appendix A contains a schedule of pay
differentials that are authorized for irregular or intermittent
hazardous duty. The Arbitrator found that the regulation
"focuses on the potentiality of health hazards . . ." and
authorizes 25 percent hazard duty pay for exposure to toxic
chemical hazards. Id. at 14. The Arbitrator determined that
the employees "worked in proximity to danger of fumes from
toxic chemicals to which they were subjected intermittently[,]"
that the danger existed throughout the period the employees
were co-located with the urethane manufacturer and that,
therefore, hazard pay should be given for the entire period.
Id. Consequently, he directed the Agency to provide hazard pay
for the period during which the employees worked at the
unhealthy premises or, "if current regulations do not authorize such payments[,]" to petition the Office of Personnel
Management (OPM) to amend Appendix A to allow for such payment.
Id.

With regard to the other relief requested by the Union,
the Arbitrator found that inasmuch as the Agency breached its
contractual obligations to provide and maintain a safe and
healthful workplace, the Agency was obligated to take the
following actions:

Restore annual or sick leave taken for periods of
illness associated with fumes during the period
January - May 1987, including time off taken for the purpose of medical examinations during that
period or subsequently in relation to possible damage and [Office of Workers' Compensation]
claims; Reimburse employees for out-of-pocket medical care costs for illness associated with
fumes during that period; Pay for the reasonable cost of medical examinations to ascertain whether
they sustained damage due to exposure to fumes.

Id. at 19.(3) In ordering such relief, the
Arbitrator rejected the Agency's argument that the
FECA is the exclusive means for the restoration of
leave and medical care payments. The Arbitrator
found, instead, that under the subsequently enacted
hazard pay provisions, as well as the parties'
agreement, the employees were entitled to the relief
requested.

III. Positions of the Parties

A. The Agency's Exceptions

The Agency contends that the Arbitrator's award
is deficient because it: (1) is contrary to law if
interpreted as awarding 25 percent hazard pay to the
grievants; (2) fails to resolve the issue of
entitlement to hazard pay and, therefore, cannot be
implemented; and (3) violates law by directing the
restoration of leave, reimbursement of medical
expenses, and the payment for physical examinations.

More specifically, as to the first exception, the
Agency contends that the Arbitrator failed to make
the necessary findings which would entitle employees
to hazard duty pay. According to the Agency, hazard
duty pay for General Schedule employees is paid when
employees are exposed to a hazard based on the
duties assigned to them, and not when accidental
exposure to unknown environmental conditions occurs.
In this regard, the Agency contends that the
grievants were not assigned hazardous duty and that
the conditions in their working environment were not
shown to have posed an unusual hazard. The Agency
argues that, at most, there was an accidental
exposure to unknown and unexpected environmental
conditions. Under these circumstances, the Agency
argues that the Arbitrator could not find an
entitlement to hazard duty pay and, therefore, that
the award of such pay is contrary to law.

In its second exception, the Agency contends that
the "award cannot be implemented as written."
Exceptions at 5. The Agency explains that by
directing it to petition OPM for authorization to
provide hazard duty pay, the award is not clear as
to whether hazard pay is authorized. The Agency
states that absent further clarification, it cannot
comply with this portion of the award.

In its final exception, the Agency contends that
the award contravenes the FECA. The Agency claims
that in enacting the FECA, Congress provided a
"comprehensive statutory framework" for addressing
employee claims for physical examinations,
reimbursement of medical expenses, and reimbursement
for leave. Id. at 6. The Agency also argues that
the FECA provides the exclusive remedy for Federal
employees seeking compensation for work related
injuries suffered during employment and that no
other procedure, such as a negotiated grievance
procedure, can be used to pursue recovery. In
support, the Agency relies on Lockheed Aircraft
Corp. v. U.S., 460 U.S. 190 (1983) (Lockheed).

B. The Union's Opposition

The Union generally disputes the Agency's
exceptions and contends that they represent nothing
more than an attempt to relitigate the merits of the
dispute before the Authority. In this regard, the
Union contends that the Arbitrator examined
pertinent law governing the payment of hazard duty
pay, and that his award is fully consistent with
those authorities. The Union also states that the
Arbitrator's order that the Agency pay hazard duty
pay must be followed unless the Authority finds that
such pay is not authorized. The alternative remedy directed by the
Arbitrator--to petition OPM to provide for hazard
duty pay in such circumstances--only becomes
operative, according to the Union, if the Authority
reverses the award of hazard duty pay.

Finally, the Union contends that the Arbitrator's
award concerning restoration of leave, reimbursement
for medical costs, and the provision of medical
exams is fully supported by the record and is fully
consistent with his remedial authority. The Union
contends that the Agency is incorrect in its
assertion that the FECA precludes the remedial
relief directed by the Arbitrator because the FECA
is "designed to protect the [G]overnment from suits
filed pursuant to statutes that waive the
[G]overnment's sovereign immunity . . . [,]" and
also because the exclusive liability provisions of
the FECA do not extend to remedies issued under
negotiated grievance procedures. Opposition
at 15-16. The Union also argues that the FECA is
inapplicable because "the nature of the injuries
suffered by the grievants are not the type
contemplated by the FECA[.]" Id. at 17. Finally,
the Union states that there are many other Federal
statutes which "authorize the payment of
compensation for personal injuries, notwithstanding
FECA[,]" and that the mandatory grievance procedure
contained in the Statute is an example of a
legislative means of obtaining compensation for a
breach of contractual duties. Id.

IV. Analysis and Conclusions

A. Agency's First and Second Exceptions

First, the Agency contends that the award is
contrary to law if interpreted as requiring the
Agency to award 25 percent hazard pay to the
grievants. Second, the Agency asserts that the
award fails to resolve the issue of entitlement to
hazard pay and, therefore, cannot be implemented.

We note initially that the Arbitrator rendered an
award of hazard duty pay, only to the extent that
current regulations authorize such payments.
Alternatively, the Arbitrator directed the Agency to
petition OPM for an amendment to its regulations.
In the absence of any exception to the alternative
remedy, we could find that the award, which merely
requires parties to take actions consonant with law,
is not deficient as being contrary to law. However,
both parties argue that the Authority must decide
whether the Arbitrator could properly direct the
Agency to pay hazard duty pay. Because the parties
have essentially interpreted the award as requiring such
payment, and in order to avoid the need for further
clarification which the Agency states would be
necessary before compliance with the award could be
effected, we will address the Arbitrator's
substantive findings as to employee entitlement to
hazard pay.

Hazard pay differentials are authorized by the
Hazardous Duty Act, 5 U.S.C. § 5545, and the
implementing regulations contained in 5 C.F.R. §§ 550.901 etseq., and Appendix A to 5 C.F.R. Part
550 (Schedule of Pay Differentials Authorized for
Irregular or Intermittent Hazardous Duty). Hazard
pay differentials apply to employees, such as the
grievants, who are covered by Chapter 51 of title 5
of the United States Code. Hazard pay differentials
are based on a schedule established by OPM and set
forth in Appendix A to 5 C.F.R. Part 550, Subpart I.
5 C.F.R. § 550.904 states, in pertinent part, that
"[a]n agency shall pay the hazard pay differential
listed in Appendix A to an employee who is assigned
to and performs any irregular or intermittent duty
specified in the appendix when that duty is not
usually involved in carrying out the duties of his
position."

The Agency contends that hazard duty pay can be
paid when employees are assigned duties which expose
them to hazards and that the grievants were not
assigned any hazardous duties. Consequently, the
Agency argues that the Arbitrator could not find an
entitlement to hazard duty pay under the
circumstances presented here. We agree.

As noted, the regulations prescribed by OPM
create an entitlement to hazard pay for employees
who are assigned to and perform any irregular or
intermittent duty specified in Appendix A, when that
duty is not usually involved in carrying out the
duties of the employee's position. Among the duties
specified in Appendix A is exposure to hazardous
agents, including working with or in close proximity
to toxic chemical materials.

The Arbitrator interpreted the regulations as
"focus[ing] on the potentiality of health hazards .
. ." and authorizing hazard duty pay for exposure to
toxic chemical hazards. Award at 14. The
Arbitrator determined that because employees worked
in proximity to danger from toxic chemical fumes,
and were subjected to such danger on an intermittent
basis throughout the time they were co-located with
the urethane manufacturer, the employees were
entitled to hazard pay.

In our view, the Arbitrator failed to make a
finding that is a necessary prerequisite to the
awarding of hazard duty pay. As a threshold matter,
the regulation authorizes hazard pay to employees
who are assigned to and perform irregular or
intermittent duties that are specified in
Appendix A. The employees here had not been
assigned duties that are specified in Appendix A.
Although Appendix A lists working with or in close
proximity to toxic chemical materials, there is no
indication in the record, and the Arbitrator did not
find, that the employees are assigned to and perform
irregular or intermittent duties involving toxic
chemicals. Consequently, there is no basis on which
to authorize hazard duty pay.

In contrast, the circumstances under which the
Authority has found hazard pay to be warranted are
those in which employees performed, on an irregular
or intermittent basis, duties that were contained in
Appendix A. For example, in U.S. Department of
Labor and National Council of Field Labor Locals,
American Federation of Government Employees,
AFL-CIO, 19 FLRA 300 (1985), the Authority sustained
an arbitrator's award ordering hazard pay for
industrial hygienists who inspected an explosives
plant. However, in Veterans Administration Medical
Center, Leavenworth, Kansas and American Federation
of Government Employees, Local 85, 35 FLRA 14
(1990), we found that an arbitrator correctly
determined that there was no entitlement to hazard
pay because Appendix A did not list the item for
which the hazard pay was sought.

For the reasons set forth above, we find that OPM
regulations do not authorize hazard pay in the
circumstances presented in this case and the
Arbitrator could not properly order such payment.
Consequently, to the extent the award could be read
as requiring the Agency to pay hazard duty pay, the
award is deficient.

However, the Arbitrator's alternative order, that
the Agency petition OPM to amend its regulations, to
which no exception was filed, is not deficient.
5 C.F.R. § 550.903(b) specifically permits agencies
to file requests with OPM seeking to amend
Appendix A. The Arbitrator's order was, thus, fully
consistent with the regulation. SeealsoVeterans
Administration Medical Center, Leavenworth, Kansas
and American Federation of Government Employees,
Local 85, 24 FLRA 902 (1986) (arbitrator's order
directing agency to request amendment to OPM
regulations found not deficient).

In sum, we find that the portion of the award
which has been interpreted as directing the Agency
to pay hazard pay is deficient as being inconsistent
with regulations governing hazard pay. The award
will be modified to strike this portion. However,
the portion of the award directing the Agency to
petition OPM to amend the regulations is not
deficient.

B. Third Exception

The Agency argues that the award is inconsistent
with law by directing the restoration of leave,
reimbursement for medical expenses, and the payment
for physical examinations.

For the reasons set forth below, we conclude that
the Arbitrator had the authority to direct the
Agency to restore the leave of the grievants and
that this portion of his award is not deficient.
However, we find that the portions of the award
reimbursing employees for medical expenses and
providing physical examinations are contrary to law
insofar as such matters can only be provided in
accordance with the FECA. Accordingly, we will
modify the award by striking the portions that are
inconsistent with law.

As noted previously, in addressing the
contentions raised by the parties as to this
exception, the Authority requested an advisory
opinion from DOL concerning the applicability of the
FECA to the matters in dispute. The parties were
given an opportunity to respond to DOL's Opinion.(4)]
The Opinion, and the parties' comments will now be
considered.

1. DOL Opinion

On June 21, 1990, the Authority submitted the
following question to the Secretary of Labor in
accordance with section 7105(i) of the Statute:

Does the FECA and the administrative process of the Office of Workers' Compensation Programs
(OWCP) under 20 C.F.R. chapter I preclude the filing of grievances or the granting of remedies
under the FSLMR Statute, 5 U.S.C. §§ 7101-7135, concerning personal injuries sustained by Federal
employees during the course of Federal employment?

On December 10, 1990, the Authority received the
Opinion from DOL's Office of Workers' Compensation
Programs (OWCP), which is responsible for
interpreting and administering the FECA. As
explained by OWCP, the Secretary of Labor is vested
with "complete and exclusive authority" to decide
all issues relating to whether a Federal employee
can be compensated under the FECA for injuries
sustained in the performance of duties. Opinion
at 1. The OWCP stated that the FECA is a
"comprehensive statute that deals specifically with
every aspect of an employee's right to be
compensated for a job-related injury." Id. at 2.
Regulations prescribed by the Secretary to
effectuate the FECA are Government-wide and
controlling in all cases where injured Federal
employees seek benefits related to the injury.

The OWCP noted that the Secretary's exclusive
authority to resolve issues concerning
compensability extends to all matters "relating to
medical care and treatment including the amount that
will be expended from the Employees' Compensation
Fund in obtaining and paying for the authorized
services." Id. The OWCP further noted that
"employing agencies, such as the IRS, have no
authority to either decide issues arising under the
FECA or issue decisions awarding or denying benefits
under that Act." Id.

The OWCP then considered whether issues similar
to those reserved for determination by the Secretary
under the FECA could be considered by an arbitrator.
The OWCP expressed the view that even if an
arbitrator's consideration of such issues did not
conflict with the Secretary's statutory authority
"the imposition of liability on the United States
for injury of a federal employee by any means other
than the FECA would appear to violate
5 U.S.C. 8116(c)."(5)Id. at 3. The OWCP noted,
contrary to an argument advanced by the Union, that the FECA
"does apply to the kinds of illnesses allegedly
sustained by the grievants in this case." Id. at 4.
In support of this assertion, OWCP noted that at
least two claims involving the grievants for
benefits under the FECA had been accepted by OWCP
and that the FECA "is designed to compensate any
employee who sustains a disabling occupational
disease resulting from exposure at the workplace, as
well as those who sustain traumatic injuries." Id.

The OWCP further stated that section 8116(c) of
the FECA was designed to protect the Federal
Government not only from suits under statutes such
as the Federal Tort Claims Act, but also from any
liability imposed on it in favor of injured
employees through a direct judicial proceeding. Id.
On the other hand, OWCP also noted that "§ 8116(c)
merely prohibits the imposition of liability, it
does not expressly preclude an agency from agreeing
to provide additional benefits, provided the agency
has the authority to do so." Id. The OWCP noted,
in this connection, that if an agency had such
authority and entered into a valid collective
bargaining agreement empowering the arbitrator to
make the award in question, "the 'liability' would
not be 'imposed,' contrary to § 8116(c), but
voluntarily accepted by the agency." Id. The OWCP
also noted, however, that any matter comprehensively
dealt with in the FECA, "including medical expense
payments, made out of the Employees' Compensation
Fund[,]" would not be a subject over which an agency
could bargain because such determinations are within
the Secretary's exclusive jurisdiction. Id.

The OWCP found, however, that the FECA "does not
specifically govern the actions of employing
agencies with regard to either the use of leave or
the restoration of leave." Id. at 5. Consequently,
the OWCP stated that "[b]ecause the Secretary does
not have final decision-making authority with regard
to this issue, we do not believe that the
arbitrator's order directing restoration of leave
conflicts with the provisions of the FECA." Id.
The OWCP also found that "employing agencies, such
as the IRS, do have authority in certain
circumstances, separate from that granted to the
Department of Labor under the FECA, to conduct and pay for medical examinations where
necessary for personnel determinations." Id.

Finally, OWCP rejected the Union's assertion that
the FECA is not the exclusive remedy because other
laws provide relief to employees injured in the
course of employment. The OWCP compared the
remedies provided by the other laws identified by
the Union with the FECA remedies and determined that
they affirmed rather than negated the exclusivity of
the FECA. Id. at 6. The OWCP did concede, however,
that other laws may provide overlapping relief or
mandate agency action and cited the OSHA as an
example.

2. Parties' Comments Concerning DOL's
Opinion

The Agency agrees with the substance of DOL's
Opinion as it pertains to the exclusivity of
benefits under the FECA. The Agency disagrees,
however, with OWCP's findings concerning leave
restoration and medical cost reimbursement. The
Agency contends that if the Arbitrator directed the
Agency to restore leave as a make whole remedy,
rather than under a buy-back procedure set forth in
the FECA, the award constitutes "an award of back
pay" and is prohibited by law. Agency Submission
at 2. In this regard, the Agency contends that
because "there was no adverse action taken against
any of the grievants, . . ." the prerequisite for an
award of backpay has not been met and this portion
of the award is contrary to the Back Pay Act. Id.
Finally, the Agency contends that the provision of
free medical examinations and medical cost
reimbursement also constitutes a monetary award and,
as it is unsupported by a finding of an adverse
action, it is also barred by the Back Pay Act. The
Agency states that the Arbitrator did not cite to
any contract provision in which the Agency agreed to
"such a benefit[,]" and that the award "exceeds the
benefits authorized by 5 U.S.C. § 7901 which are
implemented in [Federal Personnel Manual] FPM
Chapter 792." Id. at 2, 3.

The Union contends that OWCP's conclusion that
issues relating to the FECA are outside the scope of
the grievance procedure and collective bargaining is
erroneous. The Union argues that challenges to an
agency's violation of law fall within the statutory
definition of grievance and are subject to a
negotiated grievance procedure. The Union also
notes that only matters that are specifically
provided for by law are excluded from the statutory
definition of condition of employment, but that
here, "the employing agencies [sic] discretionary
decisions under FECA may be negotiated." Union
Submission at 3. Finally, it contends that the grievances in this case do not arise solely under
the FECA but rather under the parties' collective
bargaining agreement. The Union asserts that the
notion of exclusivity contained in 5 U.S.C. § 8116(c) does not address the Government's
liability under grievance arbitration. In fact, the
Union adds, DOL found that agencies have authority,
separate and apart from the FECA, to provide the
remedies of leave restoration and payment of medical
expenses. The Union contends that the Arbitrator's
make whole remedy for a contract violation is
consistent with this authority and, also, with the
Back Pay Act.

3. Restoration of Leave Is Not Contrary to
Law

We conclude that the portion of the Arbitrator's
award directing the Agency to restore unit
employees' leave is not contrary to law.

In its exceptions to the award, the Agency argues
that the FECA provides the exclusive procedure for
the restoration of leave. In its response to DOL's
Opinion, the Agency argues that the Arbitrator did
not order restoration of leave in accordance with
the buy-back procedure specified in the FECA but,
rather, ordered restoration of leave as part of a
make whole remedy. The Agency characterizes the
Arbitrator's make whole remedy as an award of a
monetary benefit that constitutes an award of
backpay. The Agency then argues that because no
adverse action was taken against any of the
grievants, the award of backpay violates the Back
Pay Act.

This exception provides no basis for finding the
award deficient. First, we note DOL's statement
that the FECA "does not specifically govern the
actions of employing agencies with regard to either
the use of leave or the restoration of leave."
Opinion at 5. DOL indicated, by way of example,
that employing agencies can exercise their
discretion and allow employees to buy back any leave
used in order to receive compensation for an
injury.(6) However, DOL further found that the
Arbitrator's order directing restoration of leave did not conflict with the FECA.
To the extent the Agency argues that the FECA
constitutes the exclusive procedure for restoring
leave, the Agency's exception lacks merit. Thus,
the agency that is charged with administering the
provisions of the FECA--namely, DOL--has determined
that the FECA does not preclude the Arbitrator's
remedy in this case. We agree with DOL and find
that the Arbitrator's award directing the
restoration of leave is not contrary to the FECA.

The Agency's claim that the award violates the
Back Pay Act also lacks merit. Contrary to the
Agency's assertion, restoration of leave is an
appropriate remedy under the Back Pay Act, 5 U.S.C. § 5596, when an employee has incurred the use of
leave as the result of an unjustified or unwarranted
personnel action. See, generally, Department of the
Air Force, Kirtland Air Force Base and American
Federation of Government Employees, Local 2263,
AFL-CIO, 19 FLRA 260 (1985), in which the Authority
discussed the requirements of the Back Pay Act in
connection with the use of sick leave. Moreover, it
is well established that an arbitrator's finding of
a contract violation constitutes a finding of an
unwarranted or unjustified personnel action for
purposes of the Back Pay Act. See, e.g., U.S.
Department of Labor, OIPA and American Federation of
Government Employees, AFL-CIO, Local 12, 26 FLRA 368
(1987), Decision on Reconsideration, 27 FLRA 109
(1987).

In this case, the Arbitrator found that the
Agency violated the parties' agreement by failing to
provide a safe and healthful workplace. The
Arbitrator further found that employees had become ill as a result of their
exposure to MEK, and that such illness necessitated
the use of leave by some of the employees. In view
of the Arbitrator's findings with regard to the
contract violation, and the connection he found
between the use of leave and the basis for the
contract violation, we conclude that the Arbitrator
made the requisite findings under the Back Pay Act
for an award ordering restoration of leave.

Consequently, for the reasons set forth above,
this portion of the award is not deficient.

2. Reimbursement for Medical Expenses and
Payment for Medical Examinations Is Contrary to Law

In directing the Agency to reimburse
employees for medical care costs and to pay for
medical examinations, the Arbitrator relied on
Section 7 of the parties' agreement. That
section states, in pertinent part, that "the
arbitrator shall possess the authority to make
an aggrieved employee whole to the extent such
remedy is not limited by law[.]" Award at 15.
In our view, the award of reimbursement or
payment in this case is limited by law, namely
the FECA.

In this regard, the Agency asserts in its
exceptions that the portions of the award
directing reimbursement for medical expenses and
the provision of physical examinations is
contrary to the FECA. The Agency argues that
5 U.S.C. § 8116(c) provides an exclusive remedy
which precludes the use of a negotiated
grievance procedure. In support, the Agency
relies on Lockheed. In its response to DOL's
Opinion, the Agency also asserts that this
portion of the award is contrary to the Back Pay
Act, and exceeds the benefits authorized by
5 U.S.C. § 7901, as implemented in FPM Chapter
792.

The Union argues that the exclusivity
provision of the FECA was designed to protect
the Government from suits involving statutes
that waive the Government's sovereign immunity,
and does not extend to remedies ordered under a
negotiated grievance procedure. The Union also
argues that the injuries suffered by the
grievants here are not the type of injury
contemplated by the FECA. In its response to
DOL's Opinion, the Union acknowledges that DOL
"is the sole authority empowered to decide" FECA
claims and that "an arbitrator cannot decide a
FECA claim." Union Submission at 4. However,
the Union argues that the claim does not arise
out of the FECA but, rather, out of the parties'
agreement.

In describing the authority of the Secretary
of Labor to administer the provisions of the
FECA, DOL states that "[t]he Secretary's
exclusive authority extends . . . to all
questions under the FECA relating to medical
care and treatment including the amount that
will be expended from the Employees'
Compensation Fund in obtaining and paying for
the authorized services." Opinion at 2. More
particularly with regard to transportation
expenses, DOL states that only the Secretary is
authorized to decide questions concerning such
payments and that the Authority's decision in
American Federation of Government Employees,
AFL-CIO, Local 1931 and Department of the Navy,
Naval Weapons Station, Concord, California, 32
FLRA 1023 (1988) (Naval Weapons Station),
reversed as to other matters sub nom.Department
of the Navy, Naval Weapons Station, Concord,
California v. FLRA, No. 88-7408 (9th Cir. Feb.
7, 1989), was not in accord with such authority.
DOL further states that the Authority erred in
finding, in Naval Weapons Station, that FPM
Chapter 810 authorizes agencies to pay
transportation expenses.

In its Opinion, DOL also found that the
particular illness alleged to have been
sustained by the grievants in this case falls
within the FECA's jurisdiction. In this regard,
we note that under regulations prescribed by the
Secretary to implement the provisions of the
FECA, "[o]ccupational disease or illness"
includes, among other things, "exposure to
hazardous elements such as, but not limited to,
toxins, poisons, fumes[.]" 20 C.F.R. § 10.5(a)(16). DOL also states in its Opinion,
however, that "in certain circumstances,"
agencies, such as the IRS, have authority to
conduct and pay for medical examinations "where
necessary for personnel determinations."
Opinion at 5. DOL referenced 5 C.F.R. §§ 339.301-339.305 as providing authorization
separate from that contained in the FECA.

In our view, the particular items for which
the Arbitrator ordered payment or reimbursement
are within the exclusive jurisdiction of the
FECA and its implementing regulations and do not
pertain to matters over which the Agency may
have separate authority to grant payment. We
reach this conclusion based on an analysis of
the pertinent regulatory authorities.

The regulations implementing the FECA set
forth procedures by which an employee seeking
compensation for an occupational disease or
illness can file claims for payment or
reimbursement for various medical expenses.
Such procedures are contained generally in 20
C.F.R. Part 10. Subpart E provides more
specifically for the furnishing of medical treatment. Among the items described
therein are services and supplies provided by or
under the supervision of physicians and other
medical professionals. 20 C.F.R. § 10.400(e).
Claimants are entitled to receive all medical
services, appliances and supplies that are
prescribed or recommended and which are
considered necessary for the treatment of a
job-related injury. 20 C.F.R. § 10.401(a).
Reimbursement for other reasonable and necessary
expenses, such as those for transportation, are
also authorized. Id. Bills for medical
services, appliances and supplies are submitted
by the provider in accordance with procedures
outlined in 20 C.F.R. § 10.411. Employees who
have paid for various services and supplies can
seek reimbursement under the procedure contained
in 20 C.F.R. § 10.412.

A review of these provisions demonstrate that
they are specifically designed to cover
situations where employees believe that they
have sustained on-the-job injuries and are
seeking payment or reimbursement for expenses
connected with such injuries. We find that the
grievants' claim in this case falls squarely
within the scope of the regulations. Moreover,
20 C.F.R. § 10.22 states that "[t]he benefits
provided to employees . . . by the [FECA]
constitute the exclusive remedy against the
United States for employment related injuries or
deaths." In our view, the Arbitrator was not
empowered to direct the Agency to make payments
that are exclusively governed by the FECA's
implementing regulations. Our finding in this
regard should not be interpreted as holding that
the Arbitrator was not empowered to hear the
issues raised in the grievance or that the
issues were outside the scope of the negotiated
grievance and arbitration procedure. Rather, we
simply find that this portion of the award
conflicts with law because only DOL can
authorize the payments at issue.

There are, however, occasions when an agency
can pay for medical examinations apart from the
provisions of the above-cited regulations.
5 C.F.R. §§ 339.301-339.305, referenced by DOL
as providing separate authorization, outline
situations where an agency orders or offers
medical examinations in connection with medical
qualification determinations. Examples of
situations where an agency can order a medical
examination include preappointment examination
or examination of an employee who "is receiving
continuation of pay or compensation as a result
of an on-the-job injury or disease" for the
purposes of enabling an agency to "determine
medical limitations that may affect placement
decisions." 5 C.F.R. § 339.301(a) and (c).
Examples of situations where an agency can offer
a medical examination are those in which an
agency "needs additional medical documentation to make an informed
management decision[,]" and include situations
where an employee requests a change in duty
status or assignment for medical reasons or
where an employee has a performance or conduct
problem which may require action by the agency.
5 C.F.R. § 339.302.

Payment of medical examinations that are
ordered or offered is governed by 5 C.F.R. § 339.304, which provides that:

Agencies shall pay for all examinations ordered or
offered under this subpart, whether conducted by the
agency's physician or the applicant's or employee's
physician. Applicants and employees must pay for a
medical examination conducted by a private physician
(or practitioner) where the purpose of the
examination is to secure a benefit sought by the
applicant or employee.

In our view, apart from the preappointment
situation, medical examinations authorized under
these regulations are designed to ensure that
agencies make appropriate placement determinations
following an employee's application for or receipt
of compensation as the result of an on-the-job
injury. By contrast, the Arbitrator here ordered
the Agency to pay for medical examinations that
precede a claim for or determination that an
employee has suffered a compensable injury. Until a
determination is made that an employee has suffered
a compensable injury, the medical examinations can
be said to be for the employee's benefit. In other
words, at a stage preliminary to the filing of a
FECA claim, the use of medical examinations to
determine whether there is a basis on which to
pursue a FECA claim is personal to the employee and
for the employee's benefit. Therefore, the
employee, and not the Agency, is required to pay for
examinations under these circumstances.

We recognize, of course, that exposure to
hazardous substances is a serious matter. Our
finding that medical examinations at this
preliminary stage are for the employee's personal
benefit does not ignore the potential adverse
consequences flowing from exposure. What we find,
however, is that the relief for injuries sustained
as a result of such exposure, including payment of
or reimbursement for expenses, is covered by the
FECA and its implementing regulations. Employees
are not left without a remedy if they believe they
have incurred an occupational illness. The
provisions of the FECA constitute the mechanism for
seeking such redress. Moreover, as previously indicated, employees who have already incurred
expenses may seek reimbursement for such expenses in
accordance with 20 C.F.R. § 10.412.

Additionally, we note that the FECA's
implementing regulations prohibit an agency from
authorizing examinations or medical or other
treatment "in any case already disallowed by the
[OWCP]." 20 C.F.R. § 10.403. If the Agency were
directed to pay for medical examinations and a
grievant's claim were disallowed, the Agency would
be placed in the position of acting contrary to the
regulation. In fact, the Arbitrator found that
claims filed by some of the grievants had been
disallowed. To now sustain the Arbitrator's order
directing payment would be inconsistent with
20 C.F.R. § 10.403.

In sum, we find that the payments directed by the
Arbitrator in this case--namely, reimbursement for
out-of-pocket medical care costs and payment for
medical examinations--are covered exclusively by the
FECA. The Arbitrator was not empowered to order
remedial relief that falls within the exclusive
purview of the FECA and its implementing
regulations. Accordingly, this portion of the award
is inconsistent with law.

This is not to say that all matters relating to
occupational illness are outside the scope of an
arbitrator's remedial authority. For example, in
American Federation of Government Employees,
National Council of Field Labor Locals and U.S.
Department of Labor, Mine Safety and Health
Administration, Denver, Colorado, 39 FLRA 546
(1991), we sustained an arbitrator's award finding
that official time and travel expenses in connection
with a grievant's OWCP hearing were authorized under
the parties' collective bargaining agreement.(7) Also, as we have found in this case, the Arbitrator
was fully within the scope of his remedial authority
in directing the restoration of leave.

In view of our conclusion, it is unnecessary to
pass on the Agency's additional contentions
concerning the applicability of Lockheed (in which
the Court held that 5 U.S.C. § 8116(c) did not bar a
third-party indemnity action against the United States) and its claims
that the award is inconsistent with the Back Pay Act
and 5 U.S.C. § 7901, and its implementing
regulations. Additionally, although DOL referenced
OSHA as requiring an agency to take certain actions
in cases involving employee exposure to toxic fumes,
the parties have not cited to any provision of OSHA
as being relevant to this case, and we need make no
further findings as to the applicability of OSHA.

Finally, in finding that the implementing
regulations of the FECA govern transportation
expenses, we disavow the portion of our analysis in
Naval Weapons Station finding that agencies have the
authority to reimburse employees for transportation
expenses. The references to FPM Chapter 810, a
regulation prepared by OWCP, relate to the
administration of the FECA and to reimbursement of
claims by OWCP. As DOL indicates, Chapter 810 does
not authorize agencies to pay such expenses.

V. Decision

The portions of the award directing the payment
of hazard pay, reimbursement for medical care costs
and payment for medical examinations are deficient
and are struck from the award. The Agency's
exceptions relating to those portions of the award
directing the Agency to petition OPM and to restore
leave are denied.

APPENDIX

Article 27 provides, in relevant part, as
follows:

Section 1A

The Employer will, to the extent of its
authority and consistent with the applicable
requirements of Title 29 of the Code of Federal
Regulations, provide and maintain safe and healthful
working conditions for all employees and will
provide places of employment which are free from
recognized hazards that are causing or are likely to
cause death or serious physical harm. The Union
will cooperate to that end and will encourage all
employees to work in a safe manner.

Section 1C

In districts and regions the Employer will
designate a safety representative for each post of
duty of more than ten (10) employees; and in the
National Office, a representative will be designated
for each building housing bargaining unit employees.
Respresentatives will be responsible for reporting
to the safety officer any hazardous or unsafe
conditions which they observe or which are reported
to them. The Employer will, to the extent of its
authority, initiate prompt and appropriate action to
correct any unsafe working condition so reported.

Section 2

When the Employer discovers a violation of
Occupational Safety and Health Administration (OSHA)
standards, it shall immediately notify the Union of
that condition. The Employer shall also notify
affected employees of the condition.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The findings made by the Arbitrator were based on a summary
of events provided by the Agency.

2. The pertinent provisions of the agreement, relied on by the
Arbitrator, are set forth in the Appendix.

3. The Arbitrator also noted that several unit
employees had filed FECA claims, and that as of the
date of the arbitration hearing, two claims had been
allowed and several denied. Award at 15.

4. Additionally, the Union submitted a statement to
DOL that was addressed in the Opinion.

(c) The liability of the United States or an
instrumentality thereof under this subchapter or any
extension thereof with respect to the injury . . .
of an employee is exclusive and instead of all other
liability of the United States or the
instrumentality to the employee, his legal representative, . . . and
any other person otherwise entitled to recover
damages from the United States or the
instrumentality because of the injury . . . in a
direct judicial proceeding, in a civil action, or in admiralty, or by an
administrative or judicial proceeding under a
workmen's compensation statute or under a Federal
tort liability statute.

(a) An employee who sustains a job-related
disability may use sick or annual leave or both to
avoid interruption of income. If the employee uses
leave during a period of disability caused by an
occupational disease or illness, and a claim for
compensation is approved, the employee may, with the
approval of the employing agency, "buy back" the
used leave and have it recredited to the employee's
account. . . .

(b) If the employing agency does not approve a repurchase of leave, then no compensation may be
paid for the period leave was used. Where the
agency agrees to the leave repurchase, the employee
may elect to have the compensation payable for the
period paid directly to the employing agency to be
applied against the amount due the agency to effect
the repurchase.

7. In contrast to transportation expenses that are
specifically enumerated in connection with the
provision of medical services, travel expenses for
claimants in connection with OWCP hearings are not
specifically covered by the FECA's implementing
regulations.